Statement of the Issues responding to Tebo’s Arguments – She has no chance in reversing the opinion

It is true that Stacy Tebo did not provide a prima facie case of discrimination or retaliation.  Even her EEOC complaint did not show such discrimination and I believe she brought in retaliation because not only do courts have difficulty with not agreeing to a retaliation claim but that Sandra Blissett won her case on retaliation, something Tebo could not prove since she was insubordinate and  disloyal, attempting to get her manager fired.  Ms. Tebo does not have a snowball’s chance in hell to get the summary judgement by the district court reversed by the court of appeals.

Did the Trial Court Commit Reversible Error by Finding that Tebo Failed to Rebut the Defendant’s Legitimate Non-Discriminatory Reasons for her Termination?


Title VII makes it unlawful for emploers to discharge or otherwise discriminate against an employee because of her sex.  Absent direct evidence of discrimination, a plaintiff (Tebo) may prove her case through circumstantial evidence.  The Plaintiff (Tebo) bears the initial burden of discrimination.   Although the burden of production shifts back and forth, the ultimate burden of persuasion remains with the plaintiff (Tebo)

To establish a prima facie case of sex discrimination Tebo must show (1) she’s a member of a protected class  (2) she was subjected to adverse employment action;  (3) her employer treated similarly situated employees, who are not members of Tebo’s class more favorably; and (4) she was qualified for the job at issue.

The Trial Court assumed, without deciding, that Tebo made out a prima facie case and that the City of Debary articulated legitimate non-discriminatory reasons for the Plaintiff’s termination; thereby shifting the burden to Tebo to show pretext.


To show pretext, Tebo must demonstrate “such weaknesses<  implausibilities, inconsistencies, incoherencies or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence.


Tebo is not allowed to recast an employer’s proffered non-discriminatory reasons or substitute her business judgment for that of the employer.  She cannot succeed by simply quarreling with the wisdom of that reason.

Tebo must show that the employer’s proffered explanation is unworthy of credence.

To avoid summary judgment, Tebo must introduce significantly probative evidence showing that the asserted reason is merely a pretext for discrimination.  A reason is not pretext for discrimination unless it shows both that the reason was false, and that discrimination was the real reason.  The inquiry to pretext centers on the employers beliefs, not the employee’s belief and  to be blunt about it, not on reality, as it exists outside the decision maker’s head.  Significantly, the question is not whether Tebo actually engaged in the alleged misconduct, rather it is whether the City of DeBary in good faith believed the reports of misconduct.


That Tebo did not in fact engage in misconduct reported to the City of DeBary is irrelevant to the question of whether the City believed the employee had done wrong.   The relevant issue is not whether Tebo actually falsified the entry but whether the City honestly believed the employee falsified the entry.

Tebo argues that she need not rebut all of the articulated reasons for her discharge because there was only one reason for her discharge, disloyalty and insubordination.  Debary agrees that the underlying cause of the majority of the events leading to her termination was her disloyalty and insubordination.  The City does not agree that all of the articulated grounds for termination were so interwound that evidence or pretext as to one ground undermines all other articulated reasons.(Tebo’s communication with the Mayor regarding terminating Parrott, is in no way interwound with the Plaintiff’s solicitation for information from a council-member regarding an executive session meeting, which was in no way interwound with Tebo’s failure to provide Parrott with the Maguire e-mails and so on).  Tebo did not introduce evidence calling into doubt Parrott’s belief that she had instigated, if not solicited, a discussion with the Mayor regarding his termination…nor did she offer evidence that rebutted Parrot’s belief that Tebo failed to provide him with the Maguire e-mails.   Although Parrot mentioned she was “paranoid, Tebo never introduced evidence that his concerns were fabricated.

It is Parrott’s understanding of the facts, not her opinion of what took place, that matters in the pretext analysis.


Did the Trial Court Commit Reversible Error by Granting Summary Judgment on Tebo’s Retaliation Claim Finding Unrebutted Legitimate Non-Retaliatory Reason for her Discharge


A prima facie case of retaliation requires Tebo to show that (1) she engaged in an activity protected under Title VII;  (2) she suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action.


Tebo must establish a prima facie case of retaliation by proving “that she engaged in statutorily protected activity, she suffered a materially adverse action and there was some causal relation between the two events.”


After Tebo has established the elements of a claim, the employer has an opportunity to articulate a legitimate, non-retaliatory reason for the challenged employment action as an affirmative defense to liability.  Tebo bears the ultimate burden of proving retaliation by a preponderance of the evidence and that the reason provided by the employer is a pretext for prohibited retaliatory conduct.


Judge Presnell found it “troubling” the Plaintiff was terminated 32 days after her letter to the EEOC.  However his concerns were obviated by the evidence of multiple intervening events; such as Tebo’s failure to provide a complete set of the Maguire e-mails and her conversation about Parrott’s potential termination with the Mayor.  By these intervening acts any temporal connection inference was dispelled.  (Intervening acts of misconduct can break any cause link between the protected conduct and the adverse employment action)


Tebo’s informal complaint to the EEOC was not really a claim of discrimination.  Tebo’s letter was a continuation of her ongoing efforts to get Parrot out of the City Manager’s position, by increasing his “displeasure” with the job.   The manner in which an employee expresses her opposition to an alleged discriminatory practice must be reasonable.


Title VII does not protect employees, even one engaged in protected opposition, from deliberate efforts to undermine his or her supervisor.  (Lack of candor and surrepititious methods to undermine managerial effectiveness, creation of intrigue and suspicion, unnecessarily insubordinate in the name of opposition is not protected.)

This court has repeatedly recognized that some otherwise protected conduct may be so disruptive or inappropriate as to fall ouside the statute’s protection.


Even accepting that Tebo had made out a prima facie case of retaliation, it remained her burden to come forward with evidence sufficient to permit a reasonable factfinder to conclude that the stated reasons were not the real reasons for her termination, but merely pretext for retaliation.  Tebo cannot demonstrate pretext unless it is shown both that the reasons were false and the retaliation was the real reason.  (Stating the Tebo must meet each proferred reason  “head on” and cannot succeed by simply disputing the wisdom of the employer’s proffered reasons)

Moreover, Tebo’s burden as to causation in a retaliation claim requires a showing that the adverse employment action would not have occurred in the absence of, that is, but-for, the protected conduct.  (holding that without establishing but-for causation, Tebo failed adequately to support her claim for Title VII retaliation)


Tebo cannot, at least not with a straight face, dispute that she was a disloyal employee who undermined Parrott’s authority and sought to have him removed from his position as City Manager.  That Parrott was motivated to fire her due to her disloyalty and insubordination, likewise cannot be contested..  Thus, the Plaintiff’s retaliation claim fails, even had she been able to raise a factual question on pretext.


Did the Trial Court Commit Reversible Error by Not Addressing the Convincing Mosaic of Evidence Theory?


Tebo claims that she established issues of fact on her claims by evidence sufficient to create a convincing mosaic of discriminatory / retaliatory motivation on the part of the Defendants.


Tebo acknowledges motivation on the part of the City and Parrott.  However, Tebo acknowledges that she did not assert a convincing mosaic argument to the Trial Judge, which is consistent with Judge Presnell’s observation in his order granting the City’s Motion for Summary Judgment.

The Eleventh Circuit has “repeatedly held that “an issue not raised in the district court and raised for the first to,time in an appeal, will not be considered by this court”.

The reason is “as a court of appeals, we review claims of judicial error in the trial courts.  If we were to regularly address questions – particularly fact-bound issues – that district courts never had a chance to examine, wee would not only waste our resources, but also deviate from the essential nature, purpose and competence of an appellate court.”  We cannot allow Tebo to argue a different case from the case she presented to the district court.

Tebo’s failure to rebut the City’s asserted legitimate, nondiscriminatory reason for her termination is fatal to her convincing mosaic theory.  The City offered multiple non-retaliatory reasons for terminating Tebo.


Did the Trial Court Commit Reversible Error in Granting Summary Judgment on Tebo’s § 1983 Claim against Parrott?


Judge Presnell dismissed Tebo’s §1983 action against Parrott since she had failed to establish her claims under Title VII.  Although certainly correct, there is an additional basis justifying summary judgement in favor of Parrott.

Qualified immunity offers complete protection for government officials sued in their individual capacities, if their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known


Qualified immunity from suit is intended to “allow government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation, protecting from suit all but the plainly incompetent or one who is knowingly violating the federal law.


A two part framework is used to evaluate qualified immunity defenses.  1) is whether the plaintiff’s allegations, if true, establish a constitutional violation.  2) If the facts construed in the light most favorable to Tebo, show that a constitutional right has been violated, another inquiry is whether the right violated was “clearly established”   Both elements of the test must be satisified for an official to lose qualified immunity.


That Tebo was soliciting the termination of her supervisor cannot seriously be disputed.  Some base level of loyalty can be expected of subordinates.  Even if Parrott’s employment decisions regarding Tebo were motivated by her sex, or were in retaliation for claimed protected conduct, (positions which Tebo’s maintains are untrue and have no support in the record), there can be no dispute that Tebo’s efforts to undermine her supervisor were a motivating factor in Parrott’s decision to take adverse employment action against her.   Where a governmental actor asserts qualified immunity and the record establishes mixed motivations, that is motivations both lawful and unlawful, unless pre-existing law dictates a decision, a governmental actor is entitled to qualified immunity.  Thus summary judgment on Tebo’s §1983 claim was proper.



The District Court thoroughly and properly evaluated the factual record correctly concluding that the City of Debary and Dan Parrott had articulated legitimate non-discriminatory / non-retaliatory reasons for the Plaintiff’s termination and that Tebo failed to introduce significant probative evidence showing that all such reasons were, in fact, pretexts for discrimination / retaliation..
Accordingly, the District Court’s decision granting summary judgment on behalf of the Defendants was correct and the final judgment entered on behalf of the City and Parrott and against Tebo should be affirmed.

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